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Judges overturn legal aid ruling

Leading judges have emphasised the importance of a resolution being found to an "impasse" over lawyers' fees which they described as standing in the way of the delivery of justice in the most complex criminal cases.

They sent out their message at the Court of Appeal in London as they overturned a Crown Court judge's decision to throw out a multimillion-pound fraud trial after defendants said they could not get representation because of cuts to legal aid.

Sir Brian Leveson, Lord Justice Davis and Lord Justice Treacy reversed the ruling made on May 1 at London's Southwark Crown Court after t he Prime Minister's brother, Alexander Cameron QC, successfully argued that the case should be halted because controversial Ministry of Justice (MoJ) reforms meant the five defendants could not find barristers of "sufficient competence".

The trial, which involves the alleged mis-selling of land to members of the public, is a so-called very high cost case (VHCC). The Government has cut fees for such long and complex cases by 30% for barristers and solicitors.

Announcing the appeal court's decision today, Sir Brian said it was " of fundamental importance that the MoJ led by the Lord Chancellor and the professions continue to try to resolve the impasse that presently stands in the way of the delivery of justice in the most complex of cases: this will require effort by both sides".

He added: "The maintenance of a criminal justice system of which we can be proud depends on a sensible resolution of the issues that have arisen."

The three judges allowed an appeal brought by C ity watchdog the Financial Conduct Authority (FCA) against the decision of Judge Anthony Leonard to stay the trial, and ordered that the "proceedings on this indictment be resumed in the Crown Court at Southwark".

Sir Brian said: " We have reached the clear conclusion that this ruling does involve errors of law or principle and, in any event, was not reasonable in the sense that a number of the conclusions reached were not reasonably open to him based on the evidence and, in any event, his ultimate finding did not constitute a reasonable exercise of the discretion open to him."

After the ruling, the FCA welcomed the decision and said in a statement: " The FCA is committed to pursuing criminal action in appropriate cases and is pleased that this case can now proceed towards trial."

If the appeal had failed, the defendants - Scott Crawley, Dale Walker, Daniel Forsyth, Aaron Petrou and Brendan Daley, who are charged with conspiracy to defraud - would have been acquitted.

Sir Brian said: "We are not saying that there could not come a time when it may be appropriate to order that this indictment be stayed: that time, however, remains very much in the future and problems about representation will have to have developed considerably before such an exceptional order could be justified.

"It would be a matter for the judge to assess on the basis of how matters stand at that point in time."

He commented: "During the course of the hearing, we made it clear that the dispute between the Bar and the Lord Chancellor about the appropriate level of remuneration for VHCCs was not one in which we could (or should) become involved.

"It involves a commercial negotiation in which (short of legal challenge) the judiciary can play no part. In any event, it is not before the court and we have received neither evidence nor submissions from any of the protagonists.

"That is not to say, however, that we are unmindful of, or unconcerned about, the issues and the underlying impact of the dispute."

Sir Brian said: "The criminal justice system in this country requires the highest quality advocates both to prosecute and to defend those accused of crime: in addition, they are the potential judges of the future.

"The better the advocates, the easier it is to concentrate on the real issues in the case, the more expeditious the hearing and the better the prospect of true verdicts according to the evidence.

"Poor quality advocates fail to take points of potential significance, or take them badly, leading to confusion and, in turn, appeals and, even more serious, leading to potential miscarriages of justice.

"We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly-funded work, developing their skills from the straightforward work until they are able to undertake the most complex."

At the Crown Court, Judge Leonard said adjourning the case to next January, as requested by the prosecution, would clog up the courts.

He said he had no reason to think the defendants would be able to find suitably-qualified barristers to represent them if the case was adjourned, given the long-running dispute over legal aid cuts.

Judge Leonard said he was "compelled to conclude that, to allow the state an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place, now amounts to a violation of the process of this court".

But Sir Brian said in the court's written judgment that the responsibility of the Lord Chancellor to provide resources to permit a fair trial to take place "arises irrespective of the cause of a problem in so doing".

He added: "It would remain if the present unwillingness of the Bar arose not because of his decision to reduce fees but if, say, the Bar had decided to decline VHCC work unless he increased the fees by 30%.

"Without commenting in any way on the merits of the dispute as to fees or as to the very necessary requirement for its resolution, to conclude that the State has violated the process of the court or that what has happened jeopardises the integrity of the criminal justice system (as opposed to its effective operation) is, quite simply, wrong as a matter of principle.

"To that extent, the primary reason given by the judge for staying the prosecution is flawed."

He also said that Judge Leonard's finding that there was no realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future "cannot be sustained; neither was it reasonable for him to reach it".

An MoJ spokeswoman said: " We welcome today's judgment. Legal aid remains available for all very high cost cases and even after the savings a QC working on a VHCC like this could expect to receive around £100,000.

"We have one of the most expensive legal aid systems in the world and we have to address this.

"We are entirely supportive of the self-employed Bar and have made strenuous efforts to secure their continuing co-operation, including changing our original proposals and introducing support measures where possible.

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